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2017 DIGILAW 872 (ORI)

Bimbadhar Nayak v. Managing Director, Tribal Development Co-operative Corporation of Orissa Limited

2017-08-11

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition under Articles 226 and 227 of the Constitution of India wherein the order dated 25.2.1994 passed by the Labour Court, Bhubaneswar in Industrial Dispute Case No.55 of 1992 is under challenge whereby and whereunder instead of passing order of reinstatement in service, compensation to the tune of Rs.5000/- has been directed to be paid to the petitioner. 2. The petitioner has raised a dispute against his termination, accordingly reference has been made referring the issue of termination before the Labour Court, Bhubaneswar, the Labour Court after appreciating the materials available on record has passed an award by declaring the order of termination as illegal due to violation of the provisions of Section 25-F of the Industrial Disputes Act and directed to pay compensation to the tune of Rs.5000/- in lieu of reinstatement and back wages, the said award is under challenge in this writ petition. 3. Learned counsel for the petitioner has submitted that since there is violation of provisions of Section 25-F of the Industrial Disputes Act and as such the petitioner ought to have been reinstated in service instead of directing to pay compensation to the tune of Rs.5000/-. 4. Learned counsel for the management has defended the award by submitting that violation of the provisions of Section 25-F of the Industrial Disputes Act does not if so facto entitle the workman for reinstatement. He has relied upon the judgment of the Hon’ble Apex Court in the case of Hari Nandan Prasad Vs. Employer I/R to Management of F.C.I., reported in AIR 2014 SC 1848 has been pleased to hold at paragraph 17 as follows:- “17. xxxxxxx Taking note of the judgments referred to in the aforesaid paragraphs and also few more cases in other portion of the said judgment, the legal position was summed up in the following manner: “It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimization, unfair labour practice etc. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization. Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. In another judgment rendered in the case of BSNL vs. Bhurumal reported in AIR 2014 SC 1188 needs to be made to the paragraph-25, which is being reproduced herein below:- “25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.” He has submitted that he has accepted the amount of compensation without any objection and as such this Court may not interfere with the award. 5. We have heard learned counsel for the parties and perused the materials available on record. 6. Sole grievance of the petitioner in this writ application is that since there is violation of the provision of Section 25-F of the Industrial Disputes Act while terminating his service and as such he should have been reinstated in service. We have perused the provision of Section 25-F of the Industrial Disputes Act which provides mandatory condition to be taken before passing an order of termination against the workman by the management. Section 25-F does not stipulates automatic reinstatement in case of violation of Section 25-F of the Act. Section 25-F provides for retrenchment and compensation. 7. We have perused the judgment rendered by the Hon’ble Apex Court in the case of Hari Nandan Prasad Vrs. Employer I/R to Management of F.C.I.(supra) and from its perusal it is evident that the order of reinstatement should not have been passed by court of law in all matter in case of violation of provision of Section 25-F of the I.D. Act rather order of reinstatement should have been passed in the exceptional cases as has been held by the Hon’ble Apex Court in the above referred case. In view of the settled proposition, the award passed by the Labour Court refusing to reinstate the petitioner in service does not warrant any interference by this Court. In view of the settled proposition, the award passed by the Labour Court refusing to reinstate the petitioner in service does not warrant any interference by this Court. So far as the amount of compensation is concerned, which according to the learned counsel for the petitioner, is too less and as such the same may be enhanced but that cannot be allowed at this stage since the petitioner has already accepted the awarded amount way back in the year 1994 without any objection and as such the award passed by the Labour Court has been given effect to. 8. In that view of the matter, quantum of amount does not warrant any interference by this Court. In view thereof, the award passed by the Tribunal dated 25.2.1994 needs no interference by this Court. 9. In the result, the writ petition is dismissed.